The defendant entered his guilty plea having unsuccessfully contested the admissibility of out of court statements made by him in relation this offence. This took place on the third day of his trial, which had been set down for five days. On that day arrangements had been made to empanel a jury and proceed with the trial. I am informed that 33 members of the community were summoned to the High Court to perform jury service specifically for this case.
It is clearly apparent that his plea has not been made in a timely manner, and has wasted valuable court time and resources, and has caused considerable inconvenience and disruption to the 33 members of the community and to those persons involved in the trial process. I will say more about this later.
Brief Facts
The offence took place in the evening of 4 April 2013 in the vicinity of Jordan Valley North Road, Sau Mau Ping, Kowloon. A team of police officers had the defendant under observation when he quickly got into the left front passenger’s seat of a private car which drove off towards Sau Mau Ping Road. The driver of the vehicle was Law Tsz‑hung, a friend of the defendant. The police followed the vehicle, keeping it under close observation.
The vehicle came to a stop near a taxi stand on Jordan Valley North Road, Sau Mau Ping. The defendant was observed looking around through the car window, after which he was seen to alight from the left front passenger’s door where he stood and looked around. Law Tsz-hung remained in the car sitting in the driver’s seat.
Police officers approached the defendant and informed him that they suspected he was in possession of dangerous drugs. Both the defendant and Law Tsz-hung were searched, but nothing suspicious was found on either of them. A search of the vehicle, however, uncovered in the pocket of the left front passenger’s seat of the car a piece of tissue paper, inside which was a further transparent plastic wrap around a transparent resealable plastic bag containing the quantity of drugs as charged.
When the drugs were found the defendant was immediately arrested and cautioned. He said, “I conveyed the drugs of “ice” here for Ah Ming to earn $300. I have not yet received the money. Give me a chance.” He was then arrested for the offence of trafficking in a dangerous drug.
He was asked, “What did Ah Ming look like?” he said he was “Tall, thin, with short hair,” and was further asked where he could be located and he said, “I don’t have any means to contact him. It was usually he who called me up.” He was also asked whether the driver of the car, Law Tsz-hung, knew he was trafficking in dangerous drugs and he said, “He didn’t know at all. It’s got nothing to do with him. I got a lift from him to come down here.”
Later, in a record of interview, he confirmed what he had said and explained that he met Ah Ming in an amusement game centre on Ting On Street on a few occasions and that on that day he had been playing games at an amusement game centre from 4 to 6 pm when Ah Ming asked him if he wanted to earn a few hundred dollars to play games. He was asked by Ah Ming to take some stuff to a friend at Amoy Gardens and he agreed. He was given a small lump wrapped in a piece of tissue paper. He knew it was “ice” because on his way home before he delivered the drugs he opened the parcel and consumed some of the drugs.
When he got to the estate where he was living, he met Law Tsz-hung and asked him to give him a lift. He said that Ah Ming told him that once he got to Amoy Gardens, someone would contact him to collect the drugs. He got out of the car, but left the parcel of drugs in the pocket of the left front passenger’s seat.
Procedural history
I wish to give a brief procedural history of the case because it is relevant to the issue of the appropriate discount, if any, to be given for the defendant’s plea of guilty.
This case was committed for trial to the Court of First Instance on 16 August 2013 upon the defendant entering a plea of not guilty and indicating that he would contest the charge against him.
There was a pre-trial review in this court on 27 March 2014 where it was indicated that the out of court statements of the defendant would be contested and that inquiries were being made for the purpose of an alibi defence during the time the defendant stated he was in the amusement games centre with Ah Ming between 4 and 6 pm on 4 April 2013.
By way of notice dated 9 May 2014, the defendant submitted particulars of an alibi by stating that in the afternoon of 4 April 2013 he was with Law Tsz-hung, Ho Shu-ying and Law Ho-ting.
On the first day of trial, 26 May 2014, application was made to adjourn the proceedings because one of the alibi witnesses, who was the 15-year-old daughter of Law Tsz-hung, was in the middle of her final examinations and therefore not available. The court was informed that previous instructions were that none of the alibi witnesses would give evidence, but that changed that morning when the defendant instructed that the young student would give evidence. On inquiry, it was revealed that no statement had been taken from her and no inquiries had been made of her about her availability.
The application was refused and the trial proceeded by way of a voir dire hearing to deal with the challenge to the admissibility of a post-recorded statement by the defendant entered in the police notebook and a video recorded interview of him.
Three police officers and the defendant gave evidence in the voir dire hearing which took place over two days. At the conclusion, I ruled that the out of court statements were made voluntarily and were therefore admissible. During the voir dire hearing I was also informed that the defendant would not be calling any of the alibi witnesses, including the young student.
Defendant’s background and mitigation
I now turn to the background and mitigation of the defendant.
He is 37 years of age and has a long list of prior criminal convictions. He was previously married, but is now divorced and lives alone. He was previously employed as a supervisor at a restaurant, but as a result of an injury to his left wrist he resigned. He was unemployed at the time of the offence.
He came to Hong Kong from China in 1988. I am told his mother and father and younger brother live in Hong Kong, but it appears he has little contact with them.
His first recorded criminal offence was possession of a dangerous drug in April 1998 when he was 22 years of age and thereafter he has come before the courts on frequent occasions in relation to offences concerning drugs and violent behaviour.
His most significant previous conviction was in March 2000 when he was sentenced to 4 years’ imprisonment for trafficking in a dangerous drug.
His last prior conviction was in August 2008 for possession of dangerous drugs and he was ordered to attend a Drug Addiction Treatment Centre for a third time. It clearly has had no effect on him.
He has been given plenty of chances to mend his ways, but it seems he has no desire to rehabilitate himself.
In mitigation it was submitted that he is addicted to drugs, in particular “ice”. It is claimed on his behalf that some of the drugs were for his self-consumption, but I reject this claim in the light of the facts agreed and the admissions he made under caution.
He said he had already consumed a small quantity of the drugs when he was on his way to deliver the rest for Ah Ming. As pointed out by Mr Michael Arthur, the prosecution counsel, the drugs seized at the arrest scene were in one packet to be delivered to the contact of Ah Ming.
Very little, if anything, can be said by way of mitigation on behalf of the defendant. He has been involved in drugs and in and out of trouble since 1998.
He was trafficking 12.56 grammes of “ice” and, according to the sentencing guidelines in AG v Ching Kwok Hung [1991] 2 HKLR 125 and HKSAR v Capitania CACC 28/2004, 11 August 2004, unreported, a starting point of a term of imprisonment of 7 years and 1 month would apply for this quantity of drugs.
The Sentence
The issue now before me is whether the defendant should be given a discount, if any, to his sentence for his guilty plea.
It is normally the practice of the courts to grant a discount of sentence of one-third to a defendant who pleads guilty. It is not a rigid rule, but it has been adhered to by the courts, even when the guilty plea is entered as late as the first day of trial. See HKSAR v Li Tak Yin [2003] 1 HKLRD 519 para 14; HKSAR v Chu Shi Keung [2000] 1 HKLRD 495 at 497 D-J. The discount is given in recognition of the display of remorse, and contrition by the defendant, and the saving of the time and expense of a trial.
The principle that guides the granting of a third discount for a guilty plea is that it is made ‘timely’ or ‘in good time’ and thereby has saved court time and resources and avoided the necessity of conducting a trial.
In England and Wales a different approach has been taken, as seen in the recent case of R v David Caley & Others [2013] 2 Cr App R 305, where a one-third discount on the plea of guilty is given at the first reasonable opportunity for such a plea, taking into account the stage in the proceedings that the defendant has indicated his intention to plead guilty and the circumstances in which it is given.
A critical factor, and one which in my view should be given far greater prominence than it receives, is the timeliness of the plea.
The importance of a timely plea of guilty to the administration of justice is that it brings finality to the case and thereby saves court time and resources and avoids the conduct of an unnecessary trial and putting witnesses, in particular the victims, from going through the ordeal of giving evidence.
It is, however, recognised that if a defendant pleads guilty only after an unsuccessful challenge to the admissibility of a confession, a reduction to the customary one-third discount would apply and would usually be in the order of 20 per cent or less; it will depend on all the circumstances of the case.
Once the trial processes have got underway, the benefits of a timely plea of guilty have significantly lessened if entered further in the trial. It is for this reason that a reduction to the customary one-third discount should be given.
Bearing in mind the particular facts and circumstances of this case, and the events that took place employing the trial processes of the court, and the relevant sentencing principles, I will give the defendant a discount of 15 per cent to his sentence for his guilty plea, even though it was not made timeously and has caused considerable inconvenience and disruption to the court processes, in particular the persons who were summoned to the court to perform jury service on the day he entered his plea of guilty.
As I indicated, on the basis of discounting the starting point of 7 years and 1 months’ imprisonment by 15 per cent, I sentence the defendant to 6 years’ imprisonment.